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2005 DIGILAW 51 (UTT)

Kamal Chand v. State

2005-02-24

IRSHAD HUSSAIN, RAJESH TANDON

body2005
Judgment [Per Hon'ble Rajesh Tandon, J.] Present appeal has been filed against the judgement and order dated 169-1996 passed by the 2nd Additional Sessions Judge, Haridwar, convicting the appellant Kamal Chand for an offence punishable under section 22 of Narcotic Drugs and Psychotropic Substances Act, and sentencing him to undergo rigorous imprisonment for twenty years and a fine of Rs. two lakhs and in default of payment of fine to further undergo rigorious imprisonment for three years. 2. Briefly stated the fact giving rise to the present appeal are that on receiving information from an informer S.I. Rambali Saroj, Police Station G.R.P. Haridwar apprehended accused Kamal Chand along with co-accused Dinesh and Shitaia Prasad at the platform of Haridwar Railway Station and on their personal search recovered three Laddoo, 5 gm. Powder and a strip of 10 tablets Seripax from Kamal Chand, 2 Laddoo, 5 gm. Powder and one strip of 10 tablets of Seripax from Dinesh and 6 Biscuits 5 gm. Power and one strip of 10 tablets of Seripax from Shitala Prasad. All the accused persons have admitted that they administer narcotic drugs to the pilgrims for committing theft of their belongings. Prior to arrest the accused persons, police party tried to procure some public witnesses but the persons present at the platform denied to become witness. Accused persons also refused to be searched before a magistrate or a gazetted officer. The recovered materials were kept under sealed covers and recovery memo Ex.ka-1 was prepared. Recovered goods along with accused persons were admitted in the police station and F.I.R. Ex.ka-2 was lodged at Police station and separate cases were registered against the accused persons. The case crime number of the present accused was 10 of 1995. 3. The Investigation of the case was entrusted to S.I. Rajberdhan Gaur and on his transfer the investigation was conducted by S.O. G.P. Sharma. He prepared site map of the place of recovery and sent the recovered articles for chemical examination. The report of chemical examination is Ex.ka-9. After completing the investigation the Investigating Officer has submitted 'Charge sheet Ex.ka-4. 4. Accused Kamal Chand was charged for the offence punishable under section 22 of the Narcotics Drugs and Psychotropic Substances Act. He denied the charge and claimed to be tried. 5. To prove its case the prosecution examined P.W.1, S.I. Rambali Saroj, P.W.2 Rajberdhan Gaur and P.W.3 G.P. Sharma. 6. 4. Accused Kamal Chand was charged for the offence punishable under section 22 of the Narcotics Drugs and Psychotropic Substances Act. He denied the charge and claimed to be tried. 5. To prove its case the prosecution examined P.W.1, S.I. Rambali Saroj, P.W.2 Rajberdhan Gaur and P.W.3 G.P. Sharma. 6. Accused Kamai Chand in his statement under section 313 Cr.P.C. denied the prosecution allegations and stated that he used to sell finger rings. He was selling finger rings at Railway Plate form. He was restrained to do so and thereafter he was detained at Police Station for 5 to 6 days and a false case was concocted against him. He did not adduce any evidence in his defence. 7. On appreciation of the evidence on record, the learned Sessions Judge held the accused guilty of the offence punishable under section 22 of the Narcotic Drugs and Psychotropic Substances Act and convicted and sentenced him as stated above Feeling aggrieved, present appeal has been filed by the accused. 8. We have heard the learned counsel for the parties and have gone through the record of the case as well as the judgement passed by the learned Sessions Judge. 9. The learned counsel for the accused has not challenged the recovery of contravened article from the possession of the accused however, he has submitted that in view of the contravention in respect of oxazepam which has been described as item No. 223 in the table under sub clause vii (a) and xxiii (a) of Section 2 of N.D.P.S. Act, small quantity has been defined as 20 gm. Whereas commercial quantity has been defined as 500 gm. In view of the fact that 10 tablets of 30 milligrams each and 1.5 gm. power of oxazepam and oxazepam mixed with 55 gms. of Laddoo was recovered from the possession of the accused appellant, the same cannot be said to be more than small quantity. He has submitted that in view of Narcotic Drugs and Psychotropic Substances (Amendment) Act 2001, the sentence awarded to the accused is too severe. 10. Section 41 of the Amended Act provides that amended Act shall not be applied in the cases pending investigation or under appeal. Section 41 of the Act, reads as under : 41. He has submitted that in view of Narcotic Drugs and Psychotropic Substances (Amendment) Act 2001, the sentence awarded to the accused is too severe. 10. Section 41 of the Amended Act provides that amended Act shall not be applied in the cases pending investigation or under appeal. Section 41 of the Act, reads as under : 41. Application of this Act to pending cases- (1) Notwithstanding anything contained in sub section (2) of section 1, all cases pending before the courts or under Investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly any persons found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment for which he Is otherwise liable at the date of the commission of such offence: Provided that nothing In this section shall apply to cases pending in appeal. (2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force. 11. The learned Addl. Government Advocate has referred to the judgment of apex Court 2004 SAR (Criminal) 329, Basheer @ N.P. Basheer vs. State of Kerala, where the similar question was referred for deciding before the Constitutional Bench. The Apex Court has held that application of the amended Act to the cases, where the appeals are pending on the date of its commencement could possibly result in the trials being vitiated, leading to retrials which would defeat the objective of avoiding delay in trials. Hence, the proviso to section 41 of the Amending Act is not hit by Article 14 of the Constitution. 12. The apex court has held as under: "22. Inasmuch as Act 9 of 2001 introduced significant and material changes in the parent Act, which would affect the trial itself, application of the amended Act to cases where the trials had concluded and appeals were pending on the date of its commencement could possibly result in the trials being vitiated, leading to retrials, thereby defeating at least the first objective of avoiding delay in trials. The accused, who had been tried and convicted before 2-10-2001 (i.e. as per the unamended 1985 Act) could possibly urge in the pending appeals, that as their trials were not held in accordance with the amended provisions of the Act, their trials must be held to be vitiated and that they should be retried in accordance with the amended provisions of the Act. This could be a direct and deleterious consequence of applying the amended provisions of the Act to trials which had concluded and in which appeals were filed prior to the date of the amending Act coming into force. This would certainly defeat the first objective of avoiding delay in such trials. Hence, Parliament appears to have removed this class of cases from the ambit of the amendments and excluded them from the scope of the amending Act so that the pending appeals could be disposed of expeditiously by applying the unamended Act without the possibility of reopening the concluded trials. 13. Thus in view of above proposition of law the provisions of Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 are not applicable to the present case and punishment under section 22 of principal Act i.e. Narcotic Drugs and Psychotropic Substances Act, 1985, is awarded to the accused. 14. In view of above discussion we are of the firm opinion that the appeal deserves to be dismissed on merit. However, considering the facts and circumstances of the case the sentence awarded to the accused by the trial Court is reduced to the minimum sentence prescribed under section 22 of the N.D.P.S. Act. 15. Consequently, the appeal is dismissed. The conviction of the accused appellant is maintained. However, the sentence awarded to him by the trial Court is reduced to rigorous imprisonment for ten years and a fine of rupees one lakh. In default of payment of fine he shall further undergo rigorous imprisonment for one year. 16. The accused is already in jail. He shall serve out the sentence. 17. Let the trial Court's record along with a copy of this judgement be sent to it for necessary action.